Having already stopped one execution in Nevada with a novel legal argument by a drug company, death penalty opponents will try to use it again in what they label a “showdown” in a “guerrilla war against the death penalty” at a hearing scheduled for 3:00 PM Friday before Senior U.S. District Judge Richard Kopf in Nebraska.
If they are again successful in stopping Carey Dean Moore’s Nebraska execution, as they were in using the argument to stop the scheduled execution of murderer Scott Raymond Dozier in Nevada, many claim that this new ploy will halt any execution in the overwhelming majority of states – 31- in which it is legal and authorized.
Death penalty opponents have pressured several drug companies to object to the use of their drugs in executions, and to argue that – even if the source of the drugs cannot be established by the plaintiffs – the state may have obtained the injectable drugs by “fraud, deceit or misrepresentation.” This argument has caused several judges to stop scheduled executions, most recently in Nevada.
But, notes public interest law professor John Banzhaf, this is contrary to the general rule of law that a manufacturer has no right to dictate how its product is used once it has been sold.
A paint manufacturer cannot stop the use of its paint to produce a sign or billboard with a horribly offensive message to which the company strongly objects, any more than the maker of a video camera can object if it is used to create movies which are obscene or contain highly offensive content to which the company opposes, notes Banzhaf, and this is true even if the products were obtained from a third party by “fraud, deceit or misrepresentation.”
Here, Nebraska state Senator Ernie Chambers, in a letter to Pfizer asking it to bring the same kind of legal action to prevent the scheduled execution of Carey Dean Moore, cited the Dozier success; a tactic which Banzhaf predicted would be used more and more by death penalty opponents.
It may well take a law suit, notes Banzhaf, since Pfizer said in a statement that it strongly objected to the use of its drugs for executions, and demanded the return of any of its drugs Nebraska intends “to misuse in a lethal injection procedure.” However, Nebraska refused the request. This new case arises out of an objection from drug maker Fresenius Kabi.
In the case of Scott Raymond Dozier, it was claimed that one of the three drugs to be used in a three-drug “execution cocktail” had been obtained by the state through “subterfuge” because it had been shipped to a third party before being turned over to Nevada. For this reason, Clark County District Court Judge Elizabeth Gonzalez stopped the planned execution.
Many drug makers have stated publicly that they do not want their products used in executions, but it is not at all clear that simply stating such opposition is enough to shut down a scheduled execution. However, under this new tactic, anything other than complete transparency in obtaining an injectable drug could bring death penalty opponents the victory they desire, especially if that argument is made by the drug maker.
The problem with using injectable drugs for executions is further complicated by the fact that federal judge Richard Leon has enjoined the importation of most of these drugs, and even ordered any correctional departments in possession of the drugs to return them to the FDA, because these execution drugs cannot meet the test of being both safe and effective for their intended use.
How a drug to be used to execute an inmate can both be “effective” for its intended use of helping to cause his death, and at the same time be “safe,” says Banzhaf, is beyond his comprehension, and probably also that of any rational person, but the court order nevertheless stands as an additional major obstacle to using injectable drugs to impose the death penalty.
The simple answer, and alternative to using injectable drugs for executions with the many challenges this method faces, is putting the condemned on the pill, says Banzhaf.
Since most of the concerns of using drugs for capital punishment involve problems – including artificial scarcity and expiration dates – with drugs which are injected, an obvious alternative for meeting any constitutional problems, as well as arguments by drug companies objecting to the use of their product for capital punishment, would be for states to simply use readily available pills rather than injections to administer drugs such as barbiturates whose lethal properties are well controlled, well known, and very clearly established.
“Providing a condemned man with barbiturate pills to cause a quick and painless death – as in ‘death with dignity’ jurisdictions – is well tested, established, and accepted, does not require any trained personnel, and could avoid the many medical and other problems with injections, as well as restrictions on injectable drugs imposed by many manufacturers because of ethical and moral concerns,” suggests Banzhaf.
Barbiturate pills are approved for certain medical uses, and are even covered by Medicare Part D. So the common and generally accepted practice of prescribing drugs for “off-label use” – using a drug approved for one purpose to do something else – would seemingly permit states to use barbiturate pills in executions, and perhaps even allow them to be imported from abroad or through third parties if necessary, says Banzhaf.
Interestingly, Arizona just approved the use of barbiturates for executions, but only if injected.
However, in six states – California, Colorado, Montana, Oregon, Vermont, and Washington – physicians are permitted to prescribe barbiturate pills so that terminally ill patients can achieve death with dignity, and the pills for this purpose are readily available, and do not expire quickly, or require refrigeration, as injectable drugs often do.
“If this method is appropriate for totally innocent and often frail elderly people seeking a quick and painless death with dignity, it should be more than good enough for murderers,” Banzhaf argues.
If the prisoner refuses to take the pills and/or cannot be forced to, or only pretends to swallow them, death penalty opponents can hardly complain about unconstitutional “cruel and unusual punishment” if the state thereafter has no choice but to use lethal injections, with all the possible risks involved. To paraphrase an old legal saying, the condemned had the key to his own freedom from pain in his own hands, says Banzhaf.
Since only a few grams of certain barbiturates are necessary to cause death, and pills are apparently much harder for drug companies to restrict than liquid injectable drugs, the amount necessary to cause a quick and painless death might be administered in several easy-to-swallow and easy-to-obtain pills.
Likewise, since oral administration takes much longer for the drugs to reach the system than injections, and works far more slowly, this method of capital punishment is much less likely to trigger the sudden and sometimes violent reactions lethal injections have sometimes been said to cause, and which death penalty opponents always cite to stop executions.
Using well-known, more readily available pills rather than injections for executions might mute many constitutional objections, avoid the major problems with lethal injections highlighted by death penalty opponents, eliminate the need for medically trained personnel (who often refuse on ethical and/or professional grounds) to participate in executions, undercut if not destroy this new argument by drug companies, and have many other advantages, suggests Banzhaf.
Many of the following 31 states, which provide for the death penalty for convicts convicted of murder, might not be able to carry out the death penalty if this novel legal argument continues to persuade courts to ban the use of injectable drugs, unless they begin using the pill or some other means of carrying out capital punishment: Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming.